DOMA

Hundreds of people entered the Temple Emanu-El on yesterday to honor the life and legacy of Edith “Edie” Windsor, a gay icon whose battle for marriage equality led to the legalization of gay marriage.

Mourners held their heads down, sniffled back tears, held hands or embraced loved ones as they entered the funeral service.

“She was just one person, but was able to have this sort of huge ripple effect on the lives of so many Americans, and so many LGBTQ Americans,” said Nick Morrow, who came up from Washington, D.C., to attend the service. Morrow now works with the Human Rights Campaign, but helped with the press team for Windsor’s Supreme Court trial.

Windsor’s quest for equality started in 2009 after her spouse, Dr. Thea Spyer, died of complications from multiple sclerosis. The couple was wed in Canada, but the marriage was not recognized in the United States because of the Defense of Marriage Act (DOMA). Windsor had to pay estate taxes, about $600,000, and knew that was wrong. Her case climbed all the way to the Supreme Court and her victory opened the door to all gay couples being allowed to wed.

Hundreds of people gathered outside Temple Emanu-El to honor the life of LGBT activist, Edith Windsor. Photo by Lisa John Rogers

“Her legacy is one of love, and the right that we now have to marry the people we love,” said Rabbi Amy B. Ehrilch at the start of the service. “To have love as your legacy in life, and in law, is an everlasting blessing, which will continue to encourage and shelter generations to come with the freedom inherent in justice and equality.”

Some time after Windsor won her landmark case, Hillary Rodham Clinton came out in support of same-sex marriage. Support of LGBTQ rights was prominent in her failed presidential campaign.

“She helped changed hearts and minds,” said Clinton to the hundreds gathered at the Upper East Side synagogue, “including mine.”

“How does someone find the words to describe someone as unique and special as Edie?” Kasen-Windsor said to the mourners. “We all know she was a remarkable woman, a leader, a technology pioneer and a civil rights trailblazer who without end gave to those tirelessly around her.”

“To me she was simply my love,” she said. “When I met Edie, I knew the moment I set eyes on her years ago that she was the woman for me.”

Roberta “Robbie” Kaplan, Windsor’s Attorney in her civil rights case, said that for the last eight years Windsor was worried that she did not have long to live.

“After her spouse, Thea Spyer, passed away, Edie had suffered from a series of heart attacks which were diagnosed by doctors as broken heart syndrome — which is a real thing,” said Kaplan. “Indeed, Edie asked me and some of the other lawyers on her team to carry her nitroglycerine tablets with us when we attended events — just in case. Because of her heart condition, I think it’s fair to say, I became completely neurotic about making sure that Edie’s case got decided as quickly as possible.”

Windsor was not only celebrated for being a gay rights pioneer at the service, but for her accomplishments in her profession. Windsor earned a master’s degree in mathematics at New York University and went on to work at IBM. She eventually rose to the highest technical position at IBM as a computer programmer, which was incredibly rare for a woman at the time. After she retired, Windsor was responsible for putting many gay organizations online in the early days of the Internet.

“Always quick to volunteer, not only information but also her time and her energy, and she felt very, very strongly about the issue of ageism in the LGBT community as well as the mainstream community,” said Sandy Warshaw, a close friend.

At the end of the service, Rabbi Sharon Kleinbaum of LGBT friendly Congregation Beit Simchat Torah asked the mourners to stand for the “gay national anthem.” People laughed, and everyone exited to a live rendition of Over the Rainbow.

After fleeing Peru in 2001 because he was persecuted for being gay, Jair Izquierdo settled in New Jersey, met his future husband, and started a life with him. But that life was brought to an abrupt halt last year when Izquierdo was deported for being in the country illegally.

Izquierdo and his partner, American citizen Richard Dennis of Jersey City, N.J., are one of thousands of binational same-sex couples in the United States that struggle with deportation. They were joined together by a civil union, but Izquierdo was an illegal immigrant, and because immigration law is federal, rather than state, Dennis was unable to sponsor him for citizenship.

“Most people don’t even realize how screwed up it is,” Dennis said of the current immigration law and how it applies to gay couples. “There’s so much subjectivity and fear and misinformation.”

The Defense of Marriage Act

The problem for couples like Dennis and Izquierdo is the Defense of Marriage Act, which ruled in 1996 that marriage is a legal union between a man and a woman. Because of DOMA, the federal government and its agencies, including those responsible for immigration benefits, are prohibited from recognizing same-sex marriages and civil unions.

“It’s very hard to explain to the many people who call us every day because it’s so patently unjust,” said Victoria Neilson, the legal director at Immigration Equality, a national organization that advocates for the rights of lesbian, gay, bisexual and transgendered immigrants.

In February, the Obama administration announced that it would no longer continue to defend DOMA in the courts. However, it will be enforced until Congress or the Supreme Court votes to strike it down. In the meantime, the administration claims to be focusing on immigrants with criminal records.

This makes sense, Neilson said, because the backlog of immigration cases in each state would ease up, and many immigrants with clean records and ties to the community would have their cases closed. But whether this theory is being put into practice is a source of contention.

“It doesn’t really seem like the word has reached the field of the actual attorneys and ICE agents who are charged with deciding whether to put people in removal proceedings or not,” Neilson said, referring to the people working for Immigration and Customs Enforcement (ICE).

Dennis echoes Neilson’s concerns.

“They talk tough about secure communities and weeding out criminals, but I think that they just want to deport as many people as possible,” he said. “So the rhetoric doesn’t match the actions and it doesn’t match reality.”

Fighting for “Traditional” Marriage

Immigration Equality advocates for same-sex marriage so couples like Dennis and Izquierdo can be together. On the other side of the issue are the signers of the Manhattan Declaration, who believe in the traditional marriage view that DOMA reinforces.

Helen Alvare, a professor at the George Mason University School of Law, signed the declaration because she believes that maintaining traditional marriage protects children. She wants the government to consider new reforms that scholars and legislators have come up with that would result in what she calls “equal recognition.”

Then she heard the story of Dennis and Izquierdo. She called their separation “a huge tragedy in their lives,” but was left unconvinced that the laws of marriage should be changed.

“Is this situation really enough to overturn the argument that we really need to make something special of opposite sex unions?” Alvare asked. She said that traditional marriage still needs to be honored above all.

For couples like Dennis and Izquierdo, she suggested going some other way than “the marriage route.”

“Changing marriage as a tool for [immigration benefits] is not enough.”

Other Options

According to the Williams Institute at UCLA, there are an estimated 28,500 binational same-sex couples living in the United States. The options are limited if the foreign partner is in the country illegally, especially if it has been for longer than a year, like it was for Izquierdo.

“If someone’s here with a visa and they overstay, under current immigration law, it’s almost impossible to change from being here illegally to being here legally within the United States,” said Neilson. “And if a person leaves the country to try and legalize their status, if they have been here over a year, they can’t come back for ten years.”

Izquierdo applied for asylum after having been in the country for five years, and was denied. A series of appeals and requests to reopen the case have led to a court sending the decision back to the immigration judge, claiming the reasoning to not reopen were invalid.

Dennis said that they will move to Canada or Europe if Izquierdo cannot come back to the U.S., a common remedy among binational couples.

“We do see a fair amount of couples who end up giving up on the U.S. entirely and starting a new life in Canada,” Neilson said.

Ending DOMA

Since the current Congress has not passed much legislation, Immigration Equality is looking to the Supreme Court to repeal DOMA. Neilson suspects that the earliest this could happen is 2013, so Immigration Equality is pursuing other legislative actions in the meantime.

The Uniting American Families Act is pending, a bill that would amend immigration law to say “permanent partner” where “spouse” exists, so an American can sponsor his or her partner for immigration benefits.

There’s also the Respect for Marriage Act, which would legislatively appeal DOMA. Immigration Equality also encourages its clients to call their political representatives and ask for their help.

“When you work with lesbian and gay immigrant families, you see that it’s not an abstract right,” Neilson said. “It’s a fundamental desire to just be with the person you love. And that’s just such a heart-wrenching situation to talk to someone who finally found the person they want to be with, and they can’t be with them because of this unjust law. It’s got to go.”

Organizations representing gay and lesbian service members and veterans met with Pentagon officials last week to receive a status update on the repeal process of Don’t Ask, Don’t Tell.

Several advocacy groups including the Human Rights Campaign, Servicemembers Legal Defense Network and American Veterans for Equal Rights (AVER) expressed concerns related to the repeal .

According to The Advocate, the repeal does not solve several problems such as benefits for same-sex partners of gay service members, the insufficiency of existing channels for reporting antigay harassment and a mechanism to allow those removed from the armed forces under DADT to reclassify their discharge.

So far, the Pentagon has yet to release a public statement on the meeting.

Denny Meyer, Vice President for Region I of American Veterans for Equal Rights. Photo by Meredith Bennett-Smith

Denny Meyer, AVER’s Public Affairs Officer, said the fact that Pentagon officials were willing to meet is an important step.

“Some answers were given, but not necessarily the answers we wanted to hear,” he said. “Concerns were raised — they were not resolved — but they were raised very directly.”

The military’s policy will remain in effect until U.S. President Barack Obama, Secretary of Defense Robert Gates and the Joint Chiefs of Staff certify that the armed services are prepared to implement the final repeal, followed in turn by a 60-day waiting period.

The Defense of Marriage Act (DOMA), passed by the U.S. Congress in 1996, continues to be a sticking point for the advocacy groups. Spousal benefits for same-sex couples are not included in the repeal’s language.

“The military really is trying as hard as they can,” Meyer said. “Even though they aren’t being thrown a bone. That’s the big stumbling block. We’re still being held back by these discriminatory laws.”

Officials were also pressed to create a more efficient and less intimidating channel for gay service members to report abuse.